Marguerite Picard Blog

Hi and welcome to my blog.

This blog is a free resource for you with the aim to educate and express opinions about collaborative family law, divorce, separation and child custody. All articles are informative and are up to date with current practices. Please enjoy reading and take care of yourself. - Marguerite.

One of the favourite hobbies of family lawyers is to discuss their court cases, and nothing makes for more excitement than when the Court ‘gets it wrong’. Unsurprisingly, one lawyer or the other often thinks that the court ‘got it wrong’, and there are unpredictable cases when the court does get it wrong.

On the other side of the coin are cases where the decision of the court is more or less inevitable for clients, and with sound, not-necessarily-legal, advice, many of these customers could completely avoid court.

There are cases where the odds fall somewhere between unpredictability and inevitability, or about 50% for both parties to the litigation.

Faced with the alternatives of unpredictability, inevitability, or even chances, is litigation in the family courts ever a rational choice?

Imagine consulting your surgeon to be told that the outcome of your major surgery is either unpredictable, avoidable or equally likely to succeed or fail. In those circumstances, would the choice of surgery ever be a rational choice?

At this point, ‘Is court ever a rational choice?’ seems the only question to ask.

Most family lawyers will tell you these days that ‘I settle all my cases’. What they don’t tell you, is that those settlements only happen whilst each party maintains the threat that they will go to court if a compromise can’t be reached, or only after court proceedings have been issued. These are adversarial negotiations.

That is a very different thing from working with skilled ADR practitioners such as collaborators and mediators, when clients have more control and self determination of their outcome. The two kinds of negotiation are not members of the same family.

A point that is not understood, is that the inevitable or unpredictable decision-making of the family court, hovers over adversarial negotiations. In fact, it is the very unpredictability or inevitability of court-based outcomes that drives some of these settlements.

Being involved in adversarial negotiations that can end in court carries risk. That is, the risk that you might end up with an unpredictable, inevitable or equal odds decision from the court, despite not wanting to go there and having decided to negotiate.

Again, imagine consulting your surgeon about ways to avoid surgery, and being told that your surgeon and GP will negotiate about it, and if your GP loses the negotiation, you will end up in surgery where the outcome is unpredictable, inevitable but avoidable, or is equally likely to succeed or fail. Would opting for surgery in that case ever be a rational choice?

So now the question becomes, “is adversarial, lawyer to lawyer negotiation ever a rational first choice, when there is the alternative of ADR?”

Given the ‘choices’ generally offered to separating couples, the inevitable increase in conflict, public and private cost, time, loss of productivity, and the fallout on children, isn’t it time to disrupt the thinking that litigation is the default position for separating families?

The truth seems to be that the separating public is under-informed about how to avoid court. The other truth is that lawyers with regular practices, which includes the ‘I settle all my cases’ mode of practice, don’t understand the distinction between ‘settling’ and ‘resolving’ issues, and therefore can’t and don’t properly inform their clients of the available process choices.

There are in Australia many highly skilled collaborative lawyers, psychologists and financial planners, and mediators. Collaborative practitioners and their clients commit to reaching agreements without resort to the court. The benefit of an interdisciplinary approach is that all issues that divorcing couples face, can be addressed. Mediators, including more than one mediator working together, also have deep training in negotiation, and work from the premise that success within the process is most likely.

Alternative Dispute Resolution (known as ADR or DR) is a rational choice, and should no longer be one of Australia’s best kept secrets.

By Marguerite Picard (who, after 30+ years in the profession, knows how true this is).

Maybe the world is divided into two groups. Those who think the Family Court was invented just for them, and those who don’t. You might be wondering why this is a problem for anyone except the people who go to court? Let me introduce you to Mr V and Ms D who separated in 2005, and who, since then, have… Read more

If you are separating, you and your ex will make the decisions about your children. But if your children were able to make the decisions or the rules, this is what they would like you to know: Kara Bishop, the curator of www.postcardsfromsplitsville.com, works with children in the 10 to 12 year age group. One of the exercises she does… Read more

Divorce without court. Amicable divorce. Good divorce. Civilised separation. There are many ways you can describe the idea of preserving your health, your wealth and your family after separation. And there are many ways to go about making sure your marriage or relationship doesn’t end in an expensive war of words between lawyers, that could do lasting damage to everyone.… Read more

Every so often I’m reminded why the child support formula is a really bad idea for some families. This week was one of those weeks, when I encountered two distressing family stories: In both of these families, the father earns very significant amounts of money. Very. In both cases the conflict between the parents is off the scale. And in… Read more

Who gets the House after Divorce? The Kids? Yes, sometimes the kids do get the house. For a time anyway. For many separating parents, the idea of the kids having to move or “lose” their house is painful. Over the years, I have known many couples who have tried moving in and out of the family home, instead of their… Read more

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Marguerite Picard

It is my passion to challenge traditional thinking about divorce, to see common sense prevail, so that divorce is separated from 'the law'. Apart from mediation and collaboration being my daily bread, as a practitioner and a trainer, I aim to change the world. A little.

Located in Hawthorn, Melbourne

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I am an Accredited Specialist Dedicated to Keeping Families out of Court. My aim is to deliver a different, kinder divorce for my clients.